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An Evidence Based Model Sign Code - College of Design ...

An Evidence Based Model Sign Code - College of Design ...

U.S. 410 (1993).

U.S. 410 (1993). Applying the four prong test, the U.S. Supreme Court overturned a city regulation which sought to prohibit the location of some commercial newsracks on city streets on the basis of aesthetics and safety concerns. In reviewing the case, the Court held that the city had failed to establish a reasonable fit between its legitimate interests in safety and aesthetics and the means chosen to serve those interests. Id. In the Court’s view, the aesthetics and safety justification was not substantial enough to justify discrimination between permitted and unpermitted newsracks, both of which the high court deemed “equally unattractive.” Id. at 425. In this opinion, the Court rejected two previously imposed jurisprudential requirements (1) that the regulation had to be the “least restrictive means” of achieving said goal and (2) that a rational basis was a sufficient justification for such regulations. Id. at 417. The Court also discounted arguments that the regulation should be allowed to stand as a content neutral time, place and manner restriction. Id. Here, the Court held that the ban was clearly content-based, seeking to eliminate only those newsracks that held commercial publications. Id. Relying on the same line of precedents, the high court struck down a Rhode Island regulation which disallowed alcohol distributors from advertising the sale process of liquor in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The alleged substantial state interest in the case was the promotion of temperance. Despite the fact that the State produced some evidence of the relationship between the advertisement of alcohol products and the problem it sought to solve, the Court held that the State failed to show that it had employed all other means of furthering temperance. The Court stated that a regulation of speech could not be allowed to stand if it regulated more speech than necessary to achieve its intended purpose. A complete ban of alcoholrelated advertising was determined to be overly restrictive because the State could not produce direct evidence that a ban on this type of speech would produce a measurable improvement in the goal of promoting temperance. This case is also important because the opinion rejected past decisions where the Court had deferred to the government even when it had failed to prove compliance with Central Hudson. This is another key issue to be considered by regulators who seek to place restrictions on on-premise signage. Sign ordinances that do not provide evidence of compliance with Central Hudson can potentially be invalidated. In 2001, the tobacco industry sued the State of Massachusetts for regulations which limited the industry’s ability to advertise its products within 1,000 feet of schools and playgrounds and required all indoor advertising of such advertisements at least five feet off the floor. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). While the Supreme Court agreed with the State’s Attorney General that the interest advanced by the regulation was legitimate at least in the case of the restrictions barring advertising near schools and playgrounds, it ruled that the regulations failed to satisfy the fourth prong of the Central Hudson test. Id. Specifically, the Court held that the burden imposed on the speech was disproportionate to any benefit that might be received from implementing the regulation. Id. This decision is particularly important as it denotes a possible future shift in the level of scrutiny applied to on-premise sign ordinances, as was projected by the Court in 44 Liquormart, shifting the applicable standard of review from intermediate to strict scrutiny in cases where signage regulations are content-specific. It is important to note that most sign codes are not limited to commercial signs, and thus they must comply with the noncommercial speech standards as well. Time, Place and Manner Regulations Unfamiliar with the Central Hudson test, the planning community often seeks to regulate signage with the same approach allowable for the regulation of other constitutionally protected land uses, like adult entertainment. Familiar with Renton v. Playtime Theatres, 475 U.S. 41(1986), cities seek to regulate signage using the “time, place, and manner” (TPM) test. This test is relevant to the regulation of signage. The TPM test is appropriately applied to ordinances which seek to regulate all types of signage in content and viewpoint-neutral fashion. In United States v. O’Brien, 391 U.S. 367 (1968), the Supreme Court held that content-neutral regulations on commercial communication are subject to intermediate level scrutiny which requires such a regulation to be narrowly tailored to further an “important governmental interest unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting Corp. v. FCC, 520 U.S. 180 (1997). The Supreme Court relied on this test A Legal and Technical Exploration of On-Premise Sign Regulation: An Evidence Based-Model Sign Code 8

in its analysis of a sound amplification ordinance imposed by Rock Against Racism for a performance at an outdoor venue when it found that said ordinance sought to protect the community from a harm, i.e. noise pollution, “in a direct way.” Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). In Turner, the Court considered the evidence before it to determine if the regulation directly and materially advances the stated purpose, abandoning the generalized deference often associated with land use policies. This, coupled with the fact that most commercial signage regulations are also reviewed for compliance with the Central Hudson test in the case of as-applied challenges to sign regulations, places a new burden on localities to ground their sign codes in more than mere conjecture about traffic safety or aesthetics. In the future, the production of quantifiable evidence regarding these issues may be the only way that sign codes will survive such legal challenges. Sign Regulation and the Public Forum Doctrine The land use designation of the property where a sign is posted is relevant to the discussion regarding the regulation of signage. Property may be public or private. Public property includes those lands held and used primarily for some governmental purposes. The government has the authority to allow, regulate or even ban the placement of signage on public property. In 1984, the Court reviewed the constitutionality of a Los Angeles Municipal Code provision which prohibited the posting of signs on public property in City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). The Court held that the regulation was a content-neutral and evenhanded approach that accomplished the goal of improving the city’s aesthetic interest. Id. In this case, the Court found that sufficient channels of communication had been left open by allowing the posting of such signs on private property. Id. A different set of principles governs the regulation of signage displayed in private forums as was demonstrated by the high court’s ruling in City of Ladue v. Gilleo, 512 U.S. 43 (1994). Privately owned properties such as residences and businesses make up private forums. Ladue involved the challenge of a city sign ordinance which effectively barred private residential property owners from displaying all signs on their properties. The City of Ladue provided the same basis of justification for this ordinance as was offered in Vincent — an interest in reducing visual clutter. This ordinance was enforced against Gilleo for displaying a sign with an anti-war message in her window at her private residence. Here, the Court applied the time, place, and manner as this was a non-commercial speech case. The Court held that the ordinance went too far, finding that such interests could have been served by more temperate measures. Id. The legal distinction between public and non-public forums must be fully understood by those who seek to regulate signage. Local governments may regulate the display of signs in public forums so long as they adhere to First Amendment jurisprudence. However, when it comes to non-public forums, the rational basis standard applies so long as viewpoint discrimination does not occur. See Perry Education Assoc. v. Perry Local Educators’ Assoc. 460 U.S. 37(1983). As such, sign codes which attempt to regulate on-premise commercial signs, as well as other sign types, on private property must meet the heightened level of scrutiny established by Central Hudson and the cases that followed it. Content v. Viewpoint Regulation Local government officials can be confused by a distinction made by the Court between content and viewpoint-based regulations. Content-based regulations typically seek to limit all types of communication on an issue based on subject matter regardless of view-point. With respect to signs, contentbased regulations include, for example, regulations which allow the display of electronic message centers but limit the moving copy to the inclusion of date, time, and temperature. Another example of a content-based sign regulation is a requirement that dictates the placement and removal of election signs within a certain time frame surrounding an election. The U.S. Supreme Court has not been called upon to consider these the constitutionality of these arguably content-based restrictions. As a general rule, content-based regulations may be permitted if they are adopted to control secondary effects of speech, not to suppress it. Little clarity exists on this issue beyond this general principle. While this issue is unresolved by the courts, localities may be well advised to revisit any provisions of their ordinances which restrict the content of certain sign types. A Legal and Technical Exploration of On-Premise Sign Regulation: An Evidence Based-Model Sign Code 9

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